"Borking" Hagel? Just What the Founding Fathers Would Have Wanted

January 9, 2013

The furious opposition to the Hagel nomination has moved many commentators to a certain nostalgia---conjuring up a simpler time, when Cabinet selections were less controversial. Since World War II, only two cabinet nominees have actually been voted down, and six more have withdrawn rather than face a vote. And as is often the case, given the weakness of our grasp of history, the past seems normal and the present becomes aberrant. No doubt this rose-colored nostalgia explains why liberals and conservatives alike are complaining that Hagel is being “borked.”

Now, in the first place, the data are a little off. They do not include, for example, withdrawals of nominees for Director of Central Intelligence (Robert Gates in 1987, Theodore Sorensen in 1977) and other non-Cabinet executive positions. (Remember Peter Diamond, just last year?) They do not include nominees whose names presidents have floated in order to gauge the opposition and decided not to choose after all. (Okay, then, remember Susan Rice?)

More to the point, however, the current debate inverts the history. The placidity of the recent past is unfortunate: Big battles over cabinet nominations are exactly what the Framers would have anticipated in an era of such enormous presidential power. They would have considered few notions as dangerous as the theory that the president, by virtue of his electoral victory, is entitled to “his own team.”

Both the Constitution and the Articles of Confederation that preceded it modeled the president’s cabinet on the British cabinet council. The Framers worried about presidential authority, and imagined that the cabinet would serve as a restraint on its exercise. At the Philadelphia Convention, the delegates could not agree on precisely what powers the cabinet would possess, and therefore omitted the body from the Constitution. But the requirement for Senate confirmation of the heads of the departments was seen, as Alexander Hamilton pointed out in Federalist No. 77, as itself constituting a restraining influence on the president. He added in Federalist No. 76 that the president should not be able to fill the executive branch with people who were – wait for it – “personally allied to him.” Not only was the president not entitled to his own team; the expectation was precisely the opposite.

In the early years of the Republic, the president’s personal staff was small and relatively weak. The Cabinet secretaries enjoyed considerable discretion. Positions in the Cabinet were often held by men who were political powerplayers in their own right, and who might serve in many different administrations, in many different capacities. For the first seventy years of the Constitution, no president dared nominate Cabinet secretaries without advance consultation with powerful members of Congress. Abraham Lincoln adhered to this custom, famously peopling his cabinet with political opponents, but he also set the stage for change by replacing 1,457 of the 1,639 executive branch officials holding appointive office. Up until that time, most federal office holders below Cabinet level customarily continued from one administration to the next. (Even the highly partisan Jefferson, when he took over in 1801, was cautious in dismissing Federalists.)

The traditional restraints on executive branch appointments collapsed entirely following the disputed election of Rutherford B. Hayes in 1876. Hayes refused to listen to the council of leading senators and congressmen, and insisted instead that he would appoint his own team. This notion raised hackles, but Congress, sorely weakened by its own infighting, soon acceded.

Hayes’s attitude toward the appointment power was driven largely by his reform agenda. He had promised in the campaign to end the spoils system, and the traditional deference to congressional opinion would have deprived his administration of such patronage opponents as Carl Schurz. Nevertheless, the inability of the Senate to protect its prerogatives heralded the start of the long downward slide that has brought us to our present pass. Once the president became entitled to his own team, what exactly was the function of the Senate’s power to advise and consent to executive branch appointments? The answer is, virtually none. And the Senate over time came to behave that way. It was no longer a coequal body that the president must consult before making major appointments; it was a rubber stamp. In the second half of the twentieth century, not only were defeats and withdrawals rare--some eight out of nine nominees for the cabinet received the affirmative votes of at least 90 percent of the Senate.

So the tendency now and then to “bork” an executive branch nominee, although certainly not a good thing, arises from an entirely explicable cause. The modern presidency, under both parties, has become a quasi-constitutional juggernaut. One of the few ways of even slowing it down is for the Congress to reassert some fraction of the control the Framers expected.

Some forty years ago, the great legal scholar Charles Black pointed out that in the balance of power, the Constitution places into the hands of the Congress “just about everything.” He noted, perhaps wistfully, that “Senatorial control over the appointment process could at will be made much more thoroughgoing than is our current custom.”

Unfortunately, the trend Black identified has continued and even intensified. The Framers would have been appalled at the unwillingness of today’s flabby legislature to use its powers as serious checks on presidential authority.

I have no brief for or against Chuck Hagel. But as a student of the confirmation process, I do see how opponents could come to believe that innuendo and vilification are nowadays the only way to get anybody to pay attention. This is a cruel and tragic development, but it is the sad pass to which a century and a half of congressional spinelessness has brought us.